This common law, or "law of the land," the king was sworn to maintain.This fact is recognized by a statute made at Westminster, in 1346, by Edward III., which commences in this manner:
"Edward, by the Grace of God, &c;., &c;., to the Sheriff of Stafford, Greeting: Because that by divers complaints made to us, we have perceived that the law of the land, which we by oath are bound fo maintain,"&c;. St. 20 Edward III
The foregoing authorities are cited to show to the unprofessional reader, what is well known to the profession, that legem terrae, the law of the land,mentioned in Magna Carta, was the common, ancient, fundamental law of the land, which the kings were bound by oath to observe; and that it did not include any statutes or laws enacted by the king himself, the legislative power of the nation.
If the term legem terraehad included laws enacted by the king himself, the whole chapter of Magna Carta, now under discussion, would have amounted to nothing as a protection to liberty; because it would have imposed no restraint whatever upon the power of the king. The king could make laws at any time, and such ones as he pleased. He could, therefore, have done anything he pleased, by the law of the land,as well as in any other way, if his own laws had been "the law of the land."If his own laws had been "the law of the land," within the meaning of that term as used in Magna Carta, this chapter of Magna Carta woold have been sheer nonsense, inasmuch as the whole purpot of it would have been simply that "no man shall be arrested, imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed (by the king); nor shall the king proceed against him, nor send any one againist him with force and arms, unless by the judgment of his peers, or uness the king shall please to do so."
This chapter of Magna Carta would, therefore, have imposed not the slightest restraint upon the power of the king, or afforded the slightest protection to the liberties of the people, if the laws of the king had been embraced in theterm legem terrae. But if legem terrae was the common law, which the king was sworn to maintain, then a real restriction was laid upon his power, and a real guaranty given to the people for their liberties.
Such, then, being the meaning of legem terrae, the fact is established that Magna Carta took an accused person entirely out of the hands of the legislative power, that is, of the king; and placed him in the power and under the protection of his peers, and the common law alone; that, in short, Magna Carta suffered no man to be punished for violating any enactment of the legislative power, unless the peers or equals of the accused. freely consented to it, or the common law authorized it; that the legislative power, of itself, was wholly incompetent to require the conviction or punishment of a man for any offence whatever.
Whether Magna Carta allowed of any other trial than by jury.
The question here arises, whether "legem terrae did not allow of some other mode of trial than that by jury.
The answer is, that, at the time of Magna Carta, it is not probable, (for the reasons given in the note,) that legem terrae authorized, in criminal cases, any other trial than the trial by jury; but, if it did, it certainly authorized none but the trial by battle, the trial by ordeal, and the trial by compurgators. These were the only modes of trial, except by jury, that had been knownin England, in criminal cases, for some centuries previous to Magna Carta. All of them had become nearly extinct at the time of Magna Carta, and it is not probable that they were included in "legem terrae," as that term is used in that instrument. But if they were included in it, they have now been long obsolete, and were such as neither this nor any future age will ever return to. [23]
For all practical puposes of the present day, therefore, it may be asserted that Magna Carta allows no trial whatever but trial by jury.